DEPARTMENT OF THE TREASURY Office of the Comptroller of the Currency 12 CFR Parts 34 and 164
[Docket No. OCC-2012-0013] RIN 1557-AD62
BOARD OF GOVERNORS OF FEDERAL RESERVE SYSTEM 12 CFR Part 226
[Docket No. R-1443] RIN 7100-AD90
NATIONAL CREDIT UNION ADMINISTRATION 12 CFR Part 722
RIN 3133-AE04
BUREAU OF CONSUMER FINANCIAL PROTECTION 12 CFR Part 1026
[Docket No. CFPB-2012-0031] RIN 3170-AA11
FEDERAL HOUSING FINANCE AGENCY 12 CFR Part 1222
RIN 2590-AA58
Appraisals for Higher-Priced Mortgage Loans
AGENCIES: Board of Governors of the Federal Reserve System (Board); Bureau of Consumer Financial Protection (Bureau); Federal Deposit Insurance Corporation (FDIC); Federal Housing Finance Agency (FHFA); National Credit Union Administration
(NCUA); and Office of the Comptroller of the Currency, Treasury (OCC).
ACTION: Final rule; official staff commentary.
SUMMARY: The Board, Bureau, FDIC, FHFA, NCUA, and OCC (collectively, the Agencies) are issuing a final rule to amend Regulation Z, which implements the Truth in Lending Act (TILA), and the official interpretation to the regulation. The revisions to Regulation Z implement a new provision requiring appraisals for “higher-risk mortgages”
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that was added to TILA by the Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act or Act). For mortgages with an annual percentage rate that exceeds the average prime offer rate by a specified percentage, the final rule requires creditors to obtain an appraisal or appraisals meeting certain specified standards, provide applicants with a notification regarding the use of the appraisals, and give applicants a copy of the written appraisals used.
EFFECTIVE DATES: This final rule is effective on January 18, 2014.
FOR FURTHER INFORMATION CONTACT:
Board: Lorna Neill or Mandie Aubrey, Counsels, Division of Consumer and Community Affairs, at (202) 452-3667, or Carmen Holly, Supervisory Financial Analyst, Division of Banking Supervision and Regulation, at (202) 973-6122, Board of Governors of the Federal Reserve System, Washington, DC 20551.
Bureau:Owen Bonheimer, Counsel, or William W. Matchneer, Senior Counsel, Division of Research, Markets, and Regulations, Bureau of Consumer Financial
Protection, 1700 G Street, N.W., Washington, DC 20552, at (202) 435-7000.
FDIC: Beverlea S. Gardner, Senior Examination Specialist, Risk Management Section, at (202) 898-3640, Sumaya A. Muraywid, Examination Specialist, Risk Management Section, at (573) 875-6620, Glenn S. Gimble, Senior Policy Analyst, Division of Consumer Protection, at (202) 898-6865, Sandra S. Barker, Senior Policy Analyst, Division of Consumer Protection, at (202 898-3615, Mark Mellon, Counsel, Legal Division, at (202) 898-3884, or Kimberly Stock, Counsel, Legal Division, at (202) 898-3815, or 550 17th St, N.W., Washington, DC 20429.
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FHFA: Susan Cooper, Senior Policy Analyst, (202) 649-3121, Lori Bowes, Policy Analyst, Office of Housing and Regulatory Policy, (202) 649-3111, Ming-Yuen Meyer-Fong, Assistant General Counsel, Office of General Counsel, (202) 649-3078, or Sharron P.A. Levine, Associate General Counsel, Office of General Counsel, (202) 649-3496, Federal Housing Finance Agency, 400 Seventh Street, S.W., Washington, DC, 20024.
NCUA: John Brolin and Pamela Yu, Staff Attorneys, or Frank Kressman, Associate General Counsel, Office of General Counsel, at (703) 518-6540, or Vincent Vieten, Program Officer, Office of Examination and Insurance, at (703) 518-6360, or 1775 Duke Street, Alexandria, Virginia, 22314.
OCC: Robert L. Parson, Appraisal Policy Specialist, (202) 649-6423, G. Kevin Lawton, Appraiser (Real Estate Specialist), (202) 649-7152, Carolyn B. Engelhardt, Bank Examiner (Risk Specialist – Credit), (202) 649-6404, Charlotte M. Bahin, Senior
Counsel or Mitchell Plave, Special Counsel, Legislative & Regulatory Activities Division, (202) 649-5490, Krista LaBelle, Special Counsel, Community and Consumer Law Division, (202) 649-6350, or 250 E Street S.W., Washington D.C. 20219.
SUPPLEMENTARY INFORMATION: I. Background
In general, the Truth in Lending Act (TILA), 15 U.S.C. 1601 et seq., seeks to promote the informed use of consumer credit by requiring disclosures about its costs and terms. TILA requires additional disclosures for loans secured by consumers’ homes and permits consumers to rescind certain transactions that involve their principal dwelling. For most types of creditors, TILA directs the Bureau to prescribe regulations to carry out
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the purposes of the law and specifically authorizes the Bureau to issue regulations that contain such classifications, differentiations, or other provisions, or that provide for such adjustments and exceptions for any class of transactions, that in the Bureau’s judgment are necessary or proper to effectuate the purposes of TILA, or prevent circumvention or evasion of TILA.1 15 U.S.C. 1604(a). For most types of creditors and most provisions of the statute, TILA is implemented by the Bureau’s Regulation Z. See 12 CFR part 1026. Official Interpretations provide guidance to creditors in applying the rules to specific transactions and interpret the requirements of the regulation. See 12 CFR part 1026, Supp. I. However, as explained in the section-by-section analysis of this
SUPPLEMENTARY INFORMATION, the new appraisal section of TILA addressed in this final rule (TILA section 129H, 15 U.S.C. 1639h) is implemented not only for all affected creditors by the Bureau’s Regulation Z, but also, for creditors overseen by the OCC and the Board, respectively, by OCC regulations and the Board’s Regulation Z. See 12 CFR parts 34 and 164 (OCC regulations) and part 226 (the Board’s Regulation Z). The Bureau’s, the OCC’s and the Board’s versions of the appraisal rules and
corresponding official interpretations are substantively identical. The FDIC, NCUA, and FHFA are adopting the Bureau’s version of the regulations under this final rule.
The Dodd-Frank Act2 was signed into law on July 21, 2010. Section 1471 of the Dodd-Frank Act’s Title XIV, Subtitle F (Appraisal Activities), added a new TILA section 129H, 15 U.S.C. 1639h, which establishes appraisal requirements that apply to
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For motor vehicle dealers as defined in section 1029 of the Dodd-Frank Act, TILA directs the Board to prescribe regulations to carry out the purposes of TILA and authorizes the Board to issue regulations that contain such classifications, differentiations, or other provisions, or that provide for such adjustments and exceptions for any class of transactions, that in the Board’s judgment are necessary or proper to effectuate the purposes of TILA, or prevent circumvention or evasion of TILA. 15 U.S.C. 5519; 15 U.S.C. 1604(a).
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risk mortgages.” Specifically, new TILA section 129H prohibits a creditor from
extending credit in the form of a higher-risk mortgage loan to any consumer without first:
Obtaining a written appraisal performed by a certified or licensed appraiser who conducts a physical property visit of the interior of the property.
Obtaining an additional appraisal from a different certified or licensed appraiser if the higher-risk mortgage finances the purchase or acquisition of a property from a seller at a higher price than the seller paid, within 180 days of the seller’s
purchase or acquisition. The additional appraisal must include an analysis of the difference in sale prices, changes in market conditions, and any improvements made to the property between the date of the previous sale and the current sale. A creditor of a “higher-risk mortgage” must also:
Provide the applicant, at the time of the initial mortgage application, with a statement that any appraisal prepared for the mortgage is for the sole use of the creditor, and that the applicant may choose to have a separate appraisal conducted at the applicant’s expense.
Provide the applicant with one copy of each appraisal conducted in accordance with TILA section 129H without charge, at least three (3) days prior to the transaction closing date.
New TILA section 129H(f) defines a “higher-risk mortgage” with reference to the annual percentage rate (APR) for the transaction. A higher-risk mortgage is a “residential mortgage loan”3 secured by a principal dwelling with an APR that exceeds the average
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See Dodd-Frank Act, § 1401; TILA section 103(cc)(5), 15 U.S.C. 1602(cc)(5) (defining “residential mortgage loan”).
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prime offer rate (APOR) for a comparable transaction as of the date the interest rate is set—
By 1.5 or more percentage points, for a first lien residential mortgage loan with an original principal obligation amount that does not exceed the amount for the maximum limitation on the original principal obligation of a mortgage in effect for a residence of the applicable size, as of the date of the interest rate set, pursuant to the sixth sentence of section 305(a)(2) of the Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1454);
By 2.5 or more percentage points, for a first lien residential mortgage loan having an original principal obligation amount that exceeds the amount for the maximum limitation on the original principal obligation of a mortgage in effect for a
residence of the applicable size, as of the date of the interest rate set, pursuant to the sixth sentence of section 305(a)(2) of the Federal Home Loan Mortgage Corporation Act (12 U.S.C. 1454); or
By 3.5 or more percentage points, for a subordinate lien residential mortgage loan.
The definition of “higher-risk mortgage” expressly excludes “qualified mortgages,” as defined in TILA section 129C, and “reverse mortgage loans that are qualified mortgages,” as defined in TILA section 129C. 15 U.S.C. 1639c.
New TILA section 103(cc)(5) defines the term “residential mortgage loan” as any consumer credit transaction that is secured by a mortgage, deed of trust, or other
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includes a dwelling, other than a consumer credit transaction under an open-end credit plan. 15 U.S.C. 1602(cc)(5).
New TILA section 129H(b)(4)(A) requires the Agencies jointly to prescribe regulations to implement the property appraisal requirements for higher-risk mortgages. 15 U.S.C. 1639h(b)(4)(A). The Dodd-Frank Act requires that final regulations to
implement these provisions be issued within 18 months of the transfer of functions to the Bureau pursuant to section 1062 of the Act, or January 21, 2013.4 These regulations are to take effect 12 months after issuance.5
The Agencies published proposed regulations on September 5, 2012, that would implement these higher-risk mortgage appraisal provisions. 77 FR 54722 (Sept. 5, 2012). The comment period closed on October 15, 2012. The Agencies received more than 200 comment letters regarding the proposal from banks, credit unions, other creditors,
appraisers, appraisal management companies, industry trade associations, consumer groups, and others.
II. Summary of the Final Rule Loans Covered
To implement the statutory definition of “higher-risk mortgage,” the final rule uses the term “higher-priced mortgage loan” (HPML), a term already in use under the Bureau’s Regulation Z with a meaning substantially similar to the meaning of “higher-risk mortgage” in the Dodd-Frank Act. In response to commenters, the Agencies are using the term HPML to refer generally to the loans that could be subject to this final rule because they are closed-end credit and meet the statutory rate triggers, but the Agencies
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See Dodd-Frank Act, § 1400(c)(1).
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are separately exempting several types of HPML transactions from the rule. The term “higher-risk mortgage” encompasses a closed-end consumer credit transaction secured by a principal dwelling with an APR exceeding certain statutory thresholds. These rate thresholds are substantially similar to rate triggers that have been in use under Regulation Z for HPMLs.6 Specifically, consistent with TILA section 129H, a loan is a “higher-priced mortgage loan” under the final rule if the APR exceeds the APOR by 1.5 percent for first-lien conventional or conforming loans, 2.5 percent for first-lien jumbo loans, and 3.5 percent for subordinate-lien loans.7
Consistent with the statute, the final rule exempts “qualified mortgages” from the requirements of the rule. Qualified mortgages are defined in § 1026.43(e) of the
Bureau’s final rule implementing the Dodd-Frank Act’s ability-to-repay requirements in TILA section 129C (2013 ATR Final Rule).8 15 U.S.C. 1639c.
In addition, the final rule excludes the following classes of loans from coverage of the higher-risk mortgage appraisal rule:
(1) transactions secured by a new manufactured home; (2) transactions secured by a mobile home, boat, or trailer; (3) transactions to finance the initial construction of a dwelling;
(4) loans with maturities of 12 months or less, if the purpose of the loan is a “bridge” loan connected with the acquisition of a dwelling intended to become the consumer’s principal dwelling; and
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Added to Regulation Z by the Board pursuant to the Home Ownership and Equity Protection Act of 1994 (HOEPA), the HPML rules address unfair or deceptive practices in connection with subprime mortgages.
See 73 FR 44522, July 30, 2008; 12 CFR 1026.35.
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The existing HPML rules apply the 2.5 percent over APOR trigger for jumbo loans only with respect to a requirement to establish escrow accounts. See 12 CFR 1026.35(b)(3)(v).
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The Bureau released the 2013 ATR Final Rule on January 10, 2013, under Docket No. CFPB-2011-0008, CFPB-2012-0022, RIN 3170-AA17, at http://consumerfinance.gov/Regulations.
9 (5) reverse mortgage loans.
For reasons discussed more fully in the section-by-section analysis of
§ 1026.35(a)(1), below, the proposal included a request for comments on an alternative method of determining coverage based on the “transaction coverage rate” or TCR, rather than the APR. Unlike the APR, the TCR would exclude all prepaid finance charges not retained by the creditor, a mortgage broker, or an affiliate of either.9 This change was proposed to address a possible expansion of the definition of “finance charge” used to calculate the APR, proposed by the Bureau in its rulemaking to integrate mortgage disclosures (2012 TILA-RESPA Proposal10). Accordingly, the proposal defined “higher-risk mortgage loan” (termed “higher-priced mortgage loan” in this final rule) in the alternative as calculated by either the TCR or APR, with comment sought on both approaches.
As explained more fully in the section-by-section analysis of § 1026.35(a)(1), below, the final rule requires creditors to determine whether a loan is an HPML by comparing the APR to the APOR. The Agencies are not at this time adopting the proposed alternative of replacing the APR with the TCR and comparing the TCR to the APOR. The Agencies will consider the merits of any modifications to this approach and public comments on this matter if and when the Bureau adopts the more inclusive definition of finance charge proposed in the 2012 TILA-RESPA Proposal.
Finally, based on public comments, the Agencies intend to publish a supplemental proposal to request comment on possible exemptions for “streamlined” refinance
programs and small dollar loans, as well as to seek comment on whether application of
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See 75 FR 58539, 58660-62 (Sept. 24, 2010); 76 FR 11598, 11609, 11620, 11626 (March 2, 2011).
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the HPML appraisal rule to loans secured by certain other property types, such as existing manufactured homes, is appropriate.
Requirements that Apply to All Appraisals Performed for Non-Exempt HPMLs
Consistent with the statute, the final rule allows a creditor to originate an HPML that is not otherwise exempt from the appraisal rules only if the following conditions are met:
The creditor obtains a written appraisal;
The appraisal is performed by a certified or licensed appraiser; and
The appraiser conducts a physical property visit of the interior of the property. Also consistent with the statute, the following requirements also apply with respect to HPMLs subject to the final rule:
At application, the consumer must be provided with a statement regarding the purpose of the appraisal, that the creditor will provide the applicant a copy of any written appraisal, and that the applicant may choose to have a separate appraisal conducted for the applicant’s own use at his or her own expense; and
The consumer must be provided with a free copy of any written appraisals
obtained for the transaction at least three (3) business days before consummation. Requirement to Obtain an Additional Appraisal in Certain HPML Transactions
In addition, the final rule implements the Act’s requirement that the creditor of a “higher-risk mortgage” obtain an additional written appraisal, at no cost to the borrower, when the “higher-risk mortgage” will finance the purchase of the consumer’s principal dwelling and there has been an increase in the purchase price from a prior sale that took place within 180 days of the current sale. TILA section 129H(b)(2)(A), 15 U.S.C.
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1639(b)(2)(A). In the final rule, using their exemption authority, the Agencies are setting thresholds for the increase that will trigger an additional appraisal. An additional
appraisal will be required for an HPML (that is not otherwise exempt) if either:
The seller is reselling the property within 90 days of acquiring it and the resale price exceeds the seller’s acquisition price by more than 10 percent; or
The seller is reselling the property within 91 to 180 days of acquiring it and the resale price exceeds the seller’s acquisition price by more than 20 percent. The additional written appraisal, from a different licensed or certified appraiser, generally must include the following information: an analysis of the difference in sale prices (i.e., the sale price paid by the seller and the acquisition price of the property as set forth in the consumer’s purchase agreement), changes in market conditions, and any improvements made to the property between the date of the previous sale and the current sale.
III. Legal Authority
As noted above, TILA section 129H(b)(4)(A), added by the Dodd-Frank Act, requires the Agencies jointly to prescribe regulations implementing section 129H. 15 U.S.C. 1639h(b)(4)(A). In addition, TILA section 129H(b)(4)(B) grants the Agencies the authority jointly to exempt, by rule, a class of loans from the requirements of TILA section 129H(a) or section 129H(b) if the Agencies determine that the exemption is in the public interest and promotes the safety and soundness of creditors. 15 U.S.C.
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IV. Section-by-Section Analysis
For ease of reference, unless otherwise noted, the SUPPLEMENTARY
INFORMATION refers to the section numbers of the rules that will be published in the Bureau’s Regulation Z at 12 CFR 1026.35(a) and (c).11 As explained further in the section-by-section analysis of § 1026.35(c)(7), the rules are being published separately by the OCC, the Board, and the Bureau. No substantive difference among the three sets of rules is intended. The NCUA and FHFA adopt the rules as published in the Bureau’s Regulation Z at 12 CFR 1026.35(a) and (c), by cross-referencing these rules in 12 CFR 722.3 and 12 CFR Part 1222, respectively. The FDIC adopts the rules as published in the Bureau’s Regulation Z at 12 CFR 1026.35(a) and (c), but does not cross-reference the Bureau’s Regulation Z.
Section 1026.35 Prohibited Acts or Practices in Connection with Higher-Priced Mortgage Loans The final rule is incorporated into Regulation Z’s existing section on prohibited acts or practices in connection with HPMLs, § 1026.35. As revised, § 1026.35 will consist of four subsections – (a) Definitions; (b) Escrows for higher-priced mortgage loans; (c) Appraisals for higher-priced mortgage loans; and (d) Evasion; open-end credit. As explained in more detail in the Bureau’s final rule on escrow requirements for HPMLs (2013 Escrows Final Rule)12 (finalizing the Board’s proposal to implement the Act’s escrow account requirements under TILA section 129D, 15 U.S.C. 1639d (2011 Escrows Proposal)13), the subsections on repayment ability (existing § 1026.35(b)(1)) and
prepayment penalties (existing § 1026.35(b)(2)) will be deleted because the Dodd-Frank
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The final rule was issued by the Bureau on January 18, 2013, in accordance with 12 CFR 1074.1.
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The Bureau released the 2013 Escrows Final Rule on January 10, 2013, under Docket No. CFPB-2013-0001, RIN 3170-AA16, at http://consumerfinance.gov/Regulations.
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Act addressed these matters in other ways. Accordingly, repayment ability and
prepayment penalties are now addressed in the Bureau’s final ability-to-repay rule (2013 ATR Final Rule) and high-cost mortgage rule (2013 HOEPA Final Rule).14 See
§§ 1026.32(d)(6) and 1026.43(c), (d), (f), and (g). 35(a) Definitions
35(a)(1) Higher-priced mortgage loan
TILA section 129H(f) defines a “higher-risk mortgage” as a residential mortgage loan secured by a principal dwelling with an APR that exceeds the APOR for a
comparable transaction by a specified percentage as of the date the interest rate is set. 15 U.S.C. 1639(f). New TILA section 103(cc)(5) defines the term “residential mortgage loan” as “any consumer credit transaction that is secured by a mortgage, deed of trust, or other equivalent consensual security interest on a dwelling or on residential real property that includes a dwelling, other than a consumer credit transaction under an open-end credit plan.” 15 U.S.C. 1602(cc)(5).
Consistent with TILA sections 129H(f) and 103(cc)(5), the proposal provided that a “higher-risk mortgage loan” is a closed-end consumer credit transaction secured by the consumer’s principal dwelling with an APR that exceeds the APOR for a comparable transaction as of the date the interest rate is set by 1.5 percentage points for first-lien conventional mortgages, 2.5 percentage points for first-lien jumbo mortgages, and 3.5 percentage points for subordinate-lien mortgages.
The Agencies noted in the proposal that the statutory definition of higher-risk mortgage, though similar to that of the regulatory term “higher-priced mortgage loan,”
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The Bureau released the 2013 HOEPA Final Rule on January 10, 2013, under Docket No. CFPB-2012-0029, RIN 3170-AA12, at http://consumerfinance.gov/Regulations.
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differs from the existing regulatory definition of higher-priced mortgage loan in some important respects. First, the statutory definition of higher-risk mortgage expressly excludes loans that meet the definition of a “qualified mortgage” under TILA section 129C. In addition, the statutory definition of higher-risk mortgage includes an additional 2.5 percentage point threshold for first-lien jumbo mortgage loans, while the definition of higher-priced mortgage loan has contained this threshold only for purposes of applying the requirement to establish escrow accounts for higher-priced mortgage loans. Compare TILA section 129H(f)(2), 15 U.S.C. 1639h(f)(2), with 12 CFR 1026.35(a)(1) and
1026.35(b)(3). The Agencies requested comment on whether the concurrent use of the defined terms “higher-risk mortgage loan” and “higher-priced mortgage loan” in different portions of Regulation Z may confuse industry or consumers and, if so, what alternative approach the Agencies could take to implementing the statutory definition of “higher-risk mortgage loan” consistent with the requirements of TILA section 129H. 15 U.S.C. 1639h.
The final rule adopts the proposed definition, but replaces the term “higher-risk mortgage loan” with the term “higher-priced mortgage loan” or HPML. See existing § 1026.35(a)(1). The final rule also makes certain changes to the existing definition of HPML, discussed in detail below.
Public Comments on the Proposal
Several credit unions, banks, and an individual commenter believed that the definition of “higher-risk mortgage loan” did not adequately capture loans that were truly “high risk.” Several of these commenters stated that the definition should account not only for the cost of the loan, but also for other risk factors, such as debt to income ratio,
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loan amounts, and credit scores and other measures of a consumer’s creditworthiness. A bank commenter believed that the interest rate thresholds in the definition were
ambiguous and arbitrary and asserted that, for example, 1.5 percent was not an
exceptionally high interest margin in comparison with interest margins for credit cards and other financing. A credit union commenter believed the rule would apply to consumers who were in fact a low credit risk.
Most commenters on the definition expressly supported using the existing term HPML rather than the new term “higher-risk mortgage loan.” Commenters including, among others, a mortgage company, bank, credit union, financial holding company, credit union trade association, and banking trade association, asserted that the use of two terms with similar meanings would be confusing to the mortgage credit industry. Some asserted that consumers would be confused by this as well. Some of these commenters noted that Regulation Z also already used the term “high-cost mortgage” with different requirements and believed this third term would further compound consumer and
industry confusion. Of commenters who expressed a preference for the term that should be used, most recommended using the term HPML because this term has been used by industry for some time.
Some commenters on this issue also advocated making the rate triggers and overall definition the same for existing HPMLs and “higher-risk mortgages” regardless of the terms used. They argued that this would reduce compliance burdens and confusion and ease costs associated with developing and managing systems. One commenter believed that developing a single standard would also avoid creating unnecessary delay and additional cost for consumers in the origination process.
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A few commenters acknowledged key differences between the statutory meaning of “higher-risk mortgage” and the regulatory term HPML, and suggested ways of
harmonizing the two definitions. For example, these commenters noted that “higher-risk mortgages” do not include qualified mortgages, whereas HPMLs do. To address this difference, one commenter suggested, for example, that the appraisal requirements should apply to HPMLs as currently defined, except for qualified mortgages. Other commenters suggested that the basic definition of HPML be understood to refer solely to the rate thresholds and suggested that the exemption for qualified mortgages from the appraisal rules be inserted as a separate provision. They did not discuss how to address additional variances in the types of transactions excluded from HPML and “higher-risk mortgage,” respectively, such as the exclusion from the meaning of HPML but not the statutory definition of “higher-risk mortgage” for construction-only and bridge loans.
Other commenters also acknowledged that the current definition of HPML includes only two rate thresholds – one for first-lien mortgages (APR exceeds APOR by 1.5 percentage points) and the other for subordinate-lien mortgages (APR exceeds APOR by 3.5 percentage points). By contrast, the statutory definition of “higher-risk mortgage” has an additional rate tier for first-lien jumbo mortgages (APR exceeds APOR by 2.5 percentage points). The HPML requirements in Regulation Z apply a rate threshold of 2.5 percentage points above APOR to jumbo loans only for purposes of the requirement to escrow. The commenters who noted this distinction held the view that the “middle tier” threshold would not have a practical advantage for lenders or consumers. Instead, they recommended adopting a final rule with a single APR trigger of 1.5 percentage points above APOR for all first-lien loans.
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Discussion
In the final rule, the Agencies use the term HPML rather than the proposed term “higher-risk mortgage loan” to refer generally to the loans covered by the appraisal rules. In a separate subsection of the final rule (§ 1026.35(c)(2), discussed in the section-by-section analysis below), the Agencies exempt several types of transactions from coverage of the HPML appraisal rules.
On January 10, 2013, the Bureau published the 2013 Escrows Final Rule, its final rule to implement Dodd-Frank Act amendments to TILA regarding the requirement to escrow for certain consumer mortgages.15 See TILA section 129D, 15 U.S.C. 1639d. These rules are to take effect in May 2013, before the effective date of this final rule (January 18, 2014).
Thus, consistent with TILA sections 129H(f) and 103(cc)(5) and the proposal, the final rule in § 1026.35(a)(1) follows the Bureau’s 2013 Escrows Final Rule in defining an HPML as a closed-end consumer credit transaction secured by the consumer’s principal dwelling with an annual percentage rate that exceeds the average prime offer rate for a comparable transaction as of the date the interest rate is set:
By 1.5 or more percentage points, for a loan secured by a first lien with a principal obligation at consummation that does not exceed the limit in effect as of the date the transaction’s interest rate is set for the maximum principal obligation eligible for purchase by Freddie Mac;
By 2.5 or more percentage points, for a loan secured by a first lien with a principal obligation at consummation that exceeds the limit in effect as of the date the
15
The Bureau released the 2013 Escrows Final Rule on January 10, 2013, under Docket No. CFPB-2013-0001, RIN 3170-AA16, at http://consumerfinance.gov/Regulations.
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transaction’s interest rate is set for the maximum principal obligation eligible for purchase by Freddie Mac; and
By 3.5 or more percentage points, for a loan secured by a subordinate lien. The Agencies acknowledge that some commenters have concerns about the rate thresholds; however, these rate thresholds are prescribed by statute. See TILA section 129H(f)(2), 15 U.S.C. 1639h(f)(2); see also 15 U.S.C. 1602(cc)(5).
The Bureau in the 2013 Escrows Final Rule adopted a definition of HPML that is consistent for both TILA’s escrow requirement and TILA’s appraisal requirements for “higher-risk mortgages.” TILA sections 129D and 129H, 15 U.S.C. 1639d and 1639h. This definition incorporates the APR thresholds for loans covered by these rules as prescribed by Dodd-Frank Act amendments to TILA and also reflects that both sets of rules apply only to closed-end mortgage transactions. TILA sections 129D(b)(3) and 129H(f), 15 U.S.C. 1639d(b)(3) and 1639h(f). Overall, the revised definition of HPML adopted in the 2013 Escrows Final Rule reflects only minor changes from the current definition of HPML in existing 12 CFR 1026.35(a). For clarity, the Agencies are re-publishing the definition published earlier in the 2013 Escrows Final Rule.16 The incorporation by reference in § 1026.35(c) of the term HPML in § 1026.35(a) and the re-publishing of § 1026.35(a) in this final rule are not intended to subject § 1026.35(a) to the joint rulemaking authority of the Agencies under TILA section 129H.
Consistent with the proposal, the final rule uses the phrase “a closed-end
consumer credit transaction secured by the consumer’s principal dwelling” in place of the
16
In their respective publications of the final rule, the Board is publishing the definition of HPML at 12 CFR 226.43(a)(3) and the OCC is including a cross-reference to the definition of HPML at 12 CFR 34.202(b).
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statutory term “residential mortgage loan” throughout § 1026.35(a)(1). As also proposed, the Agencies have elected to incorporate the substantive elements of the statutory
definition of “residential mortgage loan” into the definition of HPML rather than using the term itself to avoid inadvertent confusion of the term “residential mortgage loan” with the term “residential mortgage transaction,” which is an established term used throughout Regulation Z and defined in § 1026.2(a)(24). Compare 15 U.S.C. 1602(cc)(5) (defining “residential mortgage loan”) with 12 CFR 1026.2(a)(24) (defining “residential mortgage transaction”). Accordingly, the final regulation text differs from the express statutory language, but with no intended substantive change to the scope of TILA section 129H. Annual Percentage Rate (APR) versus Transaction Coverage Rate (TCR)
The Agencies are not at this time adopting an alternative method of determining coverage based on the “transaction coverage rate” or TCR. The proposal included a request for comments on a proposed amendment to the method of calculating the APR that was proposed as part of other mortgage-related proposals issued for comment by the Bureau. In the Bureau’s proposal to integrate mortgage disclosures (2012 TILA-RESPA Proposal), the Bureau proposed to adopt a more simple and inclusive finance charge calculation for closed-end credit secured by real property or a dwelling.17 The more-inclusive finance charge definition would affect the APR calculation because the finance charge is integral to the APR calculation. The Bureau therefore also sought comment on whether replacing APR with an alternative metric might be warranted to determine whether a loan is a “high-cost mortgage” covered by the Bureau’s proposal to implement the Dodd-Frank Act provision related to “high-cost mortgages” (2012 HOEPA
17
See 2012 TILA-RESPA Proposal, 77 Fed. Reg. 51116, 51143-46, 51277-79, 51291-93, 51310-11 (Aug. 23, 2012).
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Proposal),18 as well as by the proposal to implement the Dodd-Frank Act’s escrow requirements in TILA section 129D (2011 Escrows Proposal).19 The alternative metric would have implications for the 2013 ATR Final Rule as well. One possible alternative metric discussed in those proposals is the “transaction coverage rate” (TCR), which would exclude all prepaid finance charges not retained by the creditor, a mortgage broker, or an affiliate of either.20
The new rate triggers for both “high-cost mortgages” and “higher-risk mortgages” under the Dodd-Frank Act are based on the percentage by which the APR exceeds
APOR. Given this similarity, the Agencies sought comment in the higher-risk mortgage proposal on whether a modification should be considered for this final rule as well and, if so, what type of modification. Accordingly, the proposal defined “higher-risk mortgage loan” (termed HPML in this final rule) in the alternative as calculated by either the TCR or APR, with comment sought on both approaches. The Agencies relied on their
exemption authority under section 1471 of the Dodd-Frank Act to propose this alternative definition of higher-risk mortgage. TILA section 129H(b)(4)(B), 15 U.S.C.
1639h(b)(4)(B).
On September 6, 2012, the Bureau published notice in the Federal Register that the comment period for public comments on the more inclusive definition of “finance charge” in the 2012 TILA-RESPA Proposal and the use of the TCR in the 2012 HOEPA Proposal would be extended to November 6, 2012.21 The Bureau explained that it
believed that commenters needed additional time to evaluate the proposed more inclusive
18
See 2012 HOEPA Proposal, 77 Fed. Reg. 49090, 49100-07, 49133-35 (Aug. 15, 2012).
19
15 U.S.C. 1639d; 76 FR 11598 (March 2, 2011).
20
See 75 FR 58539, 58660-62 (Sept. 24, 2010); 76 FR 11598, 11609, 11620, 11626 (March 2, 2011).
21
21
finance charge in light of the other proposals affected by the more inclusive finance charge proposal and the Bureau’s request for data on the effects of a more inclusive finance charge. The Bureau stated that it did not expect to address any proposed changes to the definition of finance charge or methods of reconciling an expanded definition of finance charge with APR coverage tests until it finalizes the disclosures in the 2012 TILA-RESPA Proposal. A final TILA-RESPA disclosure rule is not expected to be issued until sometime after January of 2013.
For this reason, this final rule requires creditors to determine whether a loan is an HPML by comparing the APR to the APOR and is not at this time finalizing the proposed alternative of replacing the APR with the TCR and comparing the TCR to the APOR. The Agencies will consider the merits of any modifications to this approach that might be necessary and public comments on this matter if and when the Bureau adopts the more inclusive definition of finance charge proposed in the 2012 TILA-RESPA Proposal. Existing Definition of HPML versus New Definition of HPML
The new definition of HPML differs from the definition of HPML in existing § 1026.35(a)(1) in several respects.
First, the new definition of HPML incorporates an additional rate threshold for determining coverage for first-lien loans – an APR trigger of 2.5 percentage points above APOR for first-lien jumbo mortgage loans. The definition retains the APR triggers of 1.5 percentage points above APOR for first-lien conforming mortgages and 3.5 percentage points above APOR for subordinate-lien loans.
By statute, this additional APR threshold of 2.5 percentage points above APOR applies in determining coverage of both the escrow requirements in revised § 1026.35(b)
22
and the appraisal requirements in revised § 1026.35(c). See TILA section 129D(b)(3)(B), 15 U.S.C. 1639d(b)(3)(B) (escrow rules); TILA section 129H(f)(2)(B), 15 U.S.C.
1639h(f)(2)(B) (appraisal rules). The APR trigger for first-lien jumbo loans has applied to the requirement to establish escrow accounts for HPMLs under Regulation Z since April 1, 2011. See existing § 1026.35(b)(3)(i) and (v); 76 FR 11319 (March 2, 2011).
Under the existing HPML rules in § 1026.35, the APR threshold of 2.5 percentage points above APOR applies only to the requirement to escrow HPMLs in
§ 1026.35(b)(3). See § 1026.35(b)(3)(v). Due to amendments to TILA mandated by the Dodd-Frank Act, however, existing HPML rules on repayment ability (§ 1026.35(b)(1)) and prepayment penalties (§ 1026.35(b)(2)) will be eliminated from the HPML rules in § 1026.35. New rules on repayment ability and prepayment penalties are incorporated into the Bureau’s 2013 ATR Final Rule and final rules on “high-cost” mortgages. See § 1026.32(b)(6) and (d)(6), § 1026.43(b)(10), (c), (e).
Thus, as revised, § 1026.35 will have only two sets of rules for HPMLs – the escrow requirements in revised § 1026.35(b) and the appraisal requirements in new § 1026.35(c). The APR test of 2.5 percentage points above APOR applies, as noted, to both sets of rules, so is now folded into the general definition of HPML in
§ 1026.35(a)(1). Accordingly, the definition of “jumbo” loans in preexisting § 1026.35(b)(3)(v) is being removed.
A second change is that the revised HPML definition adds the qualification that an HPML is a “closed-end” consumer credit transaction. This change is not substantive; instead, it merely replaces text previously in § 1026.35(a)(3), that excludes from the definition of HPML “a home-equity line of credit subject to section 1026.5b.” Other
23
exemptions from the current definition of HPML listed in existing § 1026.35(a)(3) are moved into the specific provisions setting forth exemptions for certain types of HPMLs from coverage of the escrow rules and appraisal rules, respectively. See section-by-section analysis of § 1026.35(c)(2). Thus, the final rule eliminates § 1026.35(a)(3), but with no substantive change intended.
Third, with no substantive change intended, the language used to describe the HPML rate triggers has been revised from preexisting § 1026.35(a)(1) to conform to the language used in the proposed “higher-risk mortgage” appraisal rule, which in turn conforms more closely to the statutory language used to describe the rate triggers for “higher-risk mortgages” and similar statutory rate triggers for application of the escrow requirements. See TILA section 129D(B)(3), 15 U.S.C. 1639d(b)(3) (escrow rules); TILA section 129H(f)(2), 15 U.S.C. 1639h(f)(2) (appraisal rules).
Finally, the Official Staff Interpretations are reorganized with no substantive change intended. Specifically, comments 35(a)(2)-1 and -3, clarifying the terms
“comparable transaction” and “rate set,” respectively, are moved to comments 35(a)(1)-1 and 35(a)(1)-2. This modification reflects that the terms “comparable transaction” and “rate set” occur in the definition of “higher-priced mortgage loan” in § 1026.35(a)(1). Comparable Transaction
As comment 35(a)(1)-1 indicates, the table of APORs published by the Bureau will provide guidance to creditors in determining how to use the table to identify which APOR is applicable to a particular mortgage transaction. The Bureau publishes on the internet, currently at http://www.ffiec.gov/ratespread/newcalc.aspx, in table form,
24
For example, the Bureau publishes a separate APOR for at least two types of variable rate transactions and at least two types of non-variable rate transactions. APORs are estimated APRs derived by the Bureau from average interest rates, points, and other loan pricing terms currently offered to consumers by a representative sample of creditors for mortgage transactions that have low-risk credit characteristics. Currently, the Bureau calculates APORs consistent with Regulation Z (see 12 CFR § 1026.22 and appendix J to part 1026), for each transaction type for which pricing terms are available from a survey, and estimates APORs for other types of transactions for which direct survey data are not available based on the loan pricing terms available in the survey and other information. However, data are not available for some types of mortgage transactions, including reverse mortgages. In addition, the Bureau publishes on the internet the methodology it uses to arrive at these estimates.
Rate Set
Comment 35(a)(1)-2 clarifies that a transaction’s APR is compared to the APOR as of the date the transaction's interest rate is set (or “locked”) before consummation. The comment notes that sometimes a creditor sets the interest rate initially and then re-sets it at a different level before consummation. Accordingly, under the final rule, for purposes of § 1026.35(a)(1), the creditor should use the last date the interest rate for the mortgage is set before consummation.
Average Prime Offer Rate
The Agencies are not separately publishing the definition of the term “average prime offer rate” in § 1026.35(a)(2). The meaning of this term is determined by the Bureau and is published and explained in the Bureau’s 2013 Escrows Final Rule.
25
Consistent with the proposal, in the Board’s publication of this final rule, the term APOR is defined to have the same meaning as in § 1026.35(a)(2). See 12 CFR
226.43(a)(3)(Board). The OCC’s publication of this final rule cross-references the definition of HPML, which incorporates the term APOR as defined in § 1026.35(a)(2). See 12 CFR 34.202(b). The OCC’s and the Board’s versions of Official Staff
Interpretations to the final rule cross-reference comments to § 1026.35(a)(2) that explain the meaning of average prime offer rate as described below. See 12 CFR 34.202,
comment 1 (OCC); 12 CFR 226.43, comment 2. Comment 35(a)(2)-1 clarifies that APORs are APRs derived from average interest rates, points, and other loan pricing terms currently offered to consumers by a representative sample of creditors for mortgage transactions that have low-risk pricing characteristics. Other pricing terms include commonly used indices, margins, and initial fixed-rate periods for variable-rate transactions. Relevant pricing characteristics include a consumer’s credit history and transaction characteristics such as the loan-to-value ratio, owner-occupant status, and purpose of the transaction. Currently, to obtain APORs, the Bureau uses a survey of creditors that both meets the criteria of § 1026.35(a)(2) and provides pricing terms for at least two types of variable rate transactions and at least two types of non-variable rate transactions. The Freddie Mac Primary Mortgage Market Survey® is an example of such a survey, and is the survey currently used to calculate APORs.
Principal Dwelling
As in the proposal, the final versions of the OCC’s and the Board’s publication of the definition of “higher-priced mortgage loan” rules cross-reference the Bureau’s
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“average prime offer rate,” “comparable transaction,” and “rate set.” See 12 CFR 34.202, comments 1 (OCC); 12 CFR 226.43(a)(3), comments 1, 2, 3, and 4 (Board). The
Regulation Z comments to which the OCC’s and Board’s rules cross-reference regarding the meaning of “average prime offer rate,” “comparable transaction,” and “rate set” are described above. See 12 CFR 34.202, comment1 (OCC); 12 CFR 226.43(a)(3),
comments 2, 3, and 4 (Board). A proposed comment cross-referencing the Bureau’s Regulation Z for the meaning of the term “principal dwelling” is not adopted in the Bureau’s version of the final rule because the meaning of “principal dwelling” in new § 1026.35(a)(1) is understood to be consistent within the Bureau’s Regulation Z. The OCC’s version of this final rule also does not include the proposed comment specifically cross-referencing the meaning of “principal dwelling” in the Bureau’s Regulation Z because the OCC is adopting the Bureau’s definition of HPML, which the Bureau’s definition of “principal dwelling.” See 12 CFR 34.202(b); see also 12 CFR 34.202, comment 1. The proposed comment is, however, adopted in the Board’s publication of the rule. See 12 CFR 226.43(a)(3), comment 1. Consistent with the proposal, in the final rule, the term “principal dwelling” has the same meaning as in § 1026.2(a)(24) and is further explained in existing comment 2(a)(24)-3. Consistent with comment 2(a)(24)-3, a vacation home or other second home would not be a principal dwelling. However, if a consumer buys or builds a new dwelling that will become the consumer’s principal dwelling within a year or upon the completion of construction, the comment clarifies that the new dwelling is considered the principal dwelling.
27 Threshold for “Jumbo” Loans
Comment 35(a)(1)-3 explains that § 1026.35(a)(1)(ii) provides a separate
threshold for determining whether a transaction is a higher-priced mortgage loan subject to § 1026.35 when the principal balance exceeds the limit in effect as of the date the transaction’s rate is set for the maximum principal obligation eligible for purchase by Freddie Mac (a “jumbo” loan). The comment further explains that FHFA establishes and adjusts the maximum principal obligation pursuant to rules under 12 U.S.C. 1454(a)(2) and other provisions of Federal law. The comment clarifies that adjustments to the maximum principal obligation made by FHFA apply in determining whether a mortgage loan is a “jumbo” loan to which the separate coverage threshold in § 1026.35(a)(1)(ii) applies.
The Board’s publication of the definition of “higher-priced mortgage loan” rule in this final rule cross-references this comment in the Bureau’s Official Staff Interpretations. See 12 CFR 226.43(a)(3), comment 3 (Board). The OCC’s version of the final rule
adopts this comment in 12 CFR 34.202, comment 1. 35(c) Appraisals for Higher-Priced Mortgage Loans
New § 1026.35(c) implements the substantive appraisal requirements for “higher-risk mortgages” in TILA section 129H. 15 U.S.C. 1639h. The OCC’s and the Board’s versions of these rules are substantively identical to the rules in § 1026.35(c). See 12 CFR 34.201 et seq. (OCC) and 12 CFR 226.43 (Board); see also section-by-section analysis of § 1026.35(c)(7).
28 35(c)(1) Definitions
As discussed above, revised § 1026.35(a) contains the definitions of HPML and APOR, which are used in both the HPML escrow rules in § 1026.35(b) and the HPML appraisal rules in new § 1026.35(c). Definitions specific to the substantive appraisal requirements of § 1026.35(c) are segregated in new § 1026.35(c)(1) and described below, along with applicable public comments.
35(c)(1)(i) Certified or Licensed Appraiser
TILA section 129H(b)(3) defines “certified or licensed appraiser” as a person who “(A) is, at a minimum, certified or licensed by the State in which the property to be appraised is located; and (B) performs each appraisal in conformity with the Uniform Standards of Professional Appraisal Practice and title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, and the regulations prescribed under such title, as in effect on the date of the appraisal.” 15 U.S.C. 1639h(b)(3). Consistent with the statute, the Agencies proposed to define “certified or licensed appraiser” as a person who is certified or licensed by the State agency in the State in which the property that secures the transaction is located, and who performs the appraisal in conformity with the Uniform Standards of Professional Appraisal Practice (USPAP) and the requirements applicable to appraisers in title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended (FIRREA title XI) (12 U.S.C. 3331 et seq.), and any implementing regulations in effect at the time the appraiser signs the appraiser’s certification.
The proposed definition of “certified or licensed appraiser” generally mirrors the statutory language in TILA section 129H(b)(3) regarding State licensing and
29
certification. However, the Agencies proposed to use the defined term “State agency” to clarify that the appraiser must be certified or licensed by a State agency that meets the standards of FIRREA title XI. The proposal defined the term “State agency” to mean a “State appraiser certifying and licensing agency” recognized in accordance with section 1118(b) of FIRREA title XI (12 U.S.C. 3347(b)) and any implementing regulations.22 See section-by-section analysis of § 1026.35(c)(1)(iv), below.
As discussed below, the Agencies are adopting the proposed definition of “certified or licensed appraiser” without change.
Uniform Standards of Professional Appraisal Practice (USPAP). Consistent with the statutory definition of “certified or licensed appraiser,” the proposal incorporated into the proposed definition the requirement that, to be a “certified or licensed appraiser” under the appraisal rules, the appraiser has to perform the appraisal in conformity with the “Uniform Standards of Professional Appraisal Practice.” A comment was proposed to clarify that USPAP refers to the professional appraisal standards established by the Appraisal Standards Board of the “Appraisal Foundation,” as defined in FIRREA section 1121(9). 12 U.S.C. 3350(9). The Agencies believe that this terminology is appropriate for consistency with the existing definition in FIRREA title XI and adopt the definition and comment as proposed. See § 1026.35(c)(1)(i) and comment 35(c)(1)(i)-1.
In addition, TILA section 129H(b)(3) requires that the appraisal be performed in conformity with USPAP “as in effect on the date of the appraisal.” 15 U.S.C.
22
If the Appraisal Subcommittee of the Federal Financial Institutions Examination Council issues certain written findings concerning, among other things, a State agency’s failure to recognize and enforce FIRREA title XI standards, appraiser certifications and licenses issued by that State are not recognized for purposes of title XI and appraisals performed by appraisers certified or licensed by that State are not acceptable for federally-related transactions. 12 U.S.C. 3347(b).
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1639h(b)(3). The Agencies proposed to incorporate this concept in the definition of “certified or licensed appraiser” and to include a comment clarifying that the “date of the appraisal” is the date on which the appraiser signs the appraiser’s certification. Again, the Agencies adopt the definition and comment as proposed. See § 1026.35(c)(1)(i) and comment 35(c)(1)(i)-1. Thus, the relevant edition of USPAP is the one in effect at the time the appraiser signs the appraiser’s certification.
Appraiser’s certification. The proposal also included a comment to clarify that the term “appraiser’s certification” refers to the certification that must be signed by the appraiser for each appraisal assignment as specified in USPAP Standards Rule 2-3.23 The final rule adopts this clarification without change. See comment 35(c)(1)(i)-2.
FIRREA title XI and implementing regulations. As noted, TILA section 129H(b)(3) defines ‘‘certified or licensed appraiser’’ as a person who is certified or licensed as an appraiser and ‘‘performs each appraisal in accordance with [USPAP] and title XI of [FIRREA], and the regulations prescribed under such title, as in effect on the date of the appraisal.’’ 15 U.S.C. 1639h(b)(3). Section 1110 of FIRREA directs each Federal financial institutions regulatory agency24 to prescribe “appropriate standards for the performance of real estate appraisals in connection with federally related transactions under the jurisdiction of each such agency or instrumentality.” 12 U.S.C. 3339. These rules must require, at a minimum—(1) that real estate appraisals be performed in accordance with generally accepted appraisal standards as evidenced by the appraisal
23
See Appraisal Standards Bd., Appraisal Fdn., Standards Rule 2-3, USPAP (2012-2013 ed.) at U-29,
available at http://www.uspap.org.
24
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standards promulgated by the Appraisal Standards Board of the Appraisal Foundation; and (2) that such appraisals shall be written appraisals. 12 U.S.C. 3339(1) and (2).
The Dodd-Frank Act added a third requirement—that real estate appraisals be subject to appropriate review for compliance with USPAP—for which the Federal financial institutions regulatory agencies must prescribe implementing regulations. FIRREA section 1110(3), 12 U.S.C. 3339(3). FIRREA section 1110 also provides that each Federal banking agency may require compliance with additional standards if the agency determines in writing that additional standards are required to properly carry out its statutory responsibilities. 12 U.S.C. 3339. Accordingly, the Federal financial institutions regulatory agencies have prescribed appraisal regulations implementing FIRREA title XI that set forth, among other requirements, minimum standards for the performance of real estate appraisals in connection with “federally related transactions,” which are defined as real estate-related financial transactions that a Federal banking agency engages in, contracts for, or regulates, and that require the services of an appraiser.25 12 U.S.C. 3339, 3350(4).
The Agencies’ proposal provided that the relevant provisions of FIRREA title XI and its implementing regulations are those selected portions of FIRREA title XI
requirements ‘‘applicable to appraisers,’’ in effect at the time the appraiser signs the appraiser’s certification. While the Federal financial institutions regulatory agencies’ requirements in FIRREA also apply to an institution’s ordering and review of an
appraisal, the Agencies proposed that the definition of ‘‘certified or licensed appraiser’’ incorporate only FIRREA title XI’s minimum standards related to the appraiser’s
25
See OCC: 12 CFR Part 34, Subpart C; Board: 12 CFR part 208, subpart E, and 12 CFR part 225, subpart G; FDIC: 12 CFR part 323; and NCUA: 12 CFR part 722.
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performance of the appraisal. Accordingly, a proposed comment clarified that the relevant standards ‘‘applicable to appraisers’’ are found in regulations prescribed under FIRREA section 1110 (12 U.S.C. 3339) “that relate to an appraiser’s development and reporting of the appraisal,” and that paragraph (3) of FIRREA, which relates to the review of appraisals, is not relevant. The Agencies are adopting these proposals as § 1026.35(c)(1)(i) and comment 35(c)(1)(i)-3.
The Agencies also noted that FIRREA title XI applies by its terms to ‘‘federally related transactions’’ involving a narrower category of loans and institutions than the group of loans and lenders that fall within TILA’s definition of “creditor.”26 For example, the FIRREA title XI regulations do not apply to transactions of $250,000 or less.27 They also do not apply to non-depository institutions.28 However, the Agencies believe that Congress, by including the higher-risk mortgage appraisal rules in TILA, which applies to all creditors, demonstrated its intention that all creditors that extend higher-risk mortgage loans, such as independent mortgage companies, should obtain appraisals from appraisers who conform to the standards in FIRREA related to the development and reporting of the appraisal. The Agencies also believe that, by placing this rule in TILA, Congress did not intend to limit its application to loans over $250,000. The Agencies adopt this broader interpretation in the final rule.
In the proposed rule, the Agencies did not identify specific FIRREA regulations that relate to the appraiser’s development and reporting of the appraisal. The Agencies
26
TILA section 103(g), 15 U.S.C. 1602(g) (implemented by § 1026.2(a)(17)). See also 12 U.S.C. 3350(4) and OCC: 12 CFR 34.42(f); Board: 12 CFR 225.62(f); FDIC: 12 CFR 323.2(f); and NCUA: 12 CFR 722.2(e) (defining “federally related transaction”).
27
See OCC: 12 CFR 34.43(a)(1); Board: 12 CFR 225.63(a)(1); FDIC: 12 CFR 323.3(a)(1); and NCUA: 12 CFR 722.3(a)(1).
28
See 12 U.S.C. 3339, 3350(4) (defining “federally related transaction,” (6) (defining “federal financial institutions regulatory agencies”) and (7) (defining “financial institution”).
33
requested comment on whether the final rule should address any particular FIRREA requirements applicable to appraisers that related to the development and reporting of the appraisal. Consistent with the proposal, the final rule does not identify specific FIRREA regulations that relate to the appraiser’s development and reporting of the appraisal.
Public Comments on the Proposal
Appraiser trade associations, a housing advocate, and a credit union commenter agreed that the rule should apply to all qualifying mortgage loans, and not only the subset of the higher-risk mortgage loans already covered by FIRREA, including those loans with a transaction value of $250,000 or less. The appraiser trade associations and the housing advocate commenters believed that all higher-risk mortgages must be included in the rule to ensure that consumers receive the protections offered by appraisals. The housing advocate commenter also believed that including all higher-risk mortgages would reduce risk to all parties involved in the financing and servicing of mortgages and would ensure equal access to credit. This commenter specifically requested that the Agencies at least require an interior appraisal by licensed appraisers for all residential mortgages above $50,000, regardless of whether they are originated or insured by the private sector, Fannie Mae, Freddie Mac, or the Federal Housing Administration (FHA).
A banking trade association and a credit union commenter, however, believed that Congress intended the FIRREA requirements to apply only to a subset of higher-risk mortgages that are already covered by FIRREA. The banking trade association commenter believed the Agencies should not require the rule to apply to loans held in portfolio or loans with a value of $250,000 or less, because a bank holding a loan in portfolio has strong incentive to ensure that the property sale is legitimate and the
34
property is properly valued. The commenter also believed the statute intended to apply the rules only to the subset of higher-risk mortgages with a value of over $250,000, as is provided in the Federal financial institutions regulatory agencies’ regulations
implementing FIRREA. The banking trade association and a bank commenter noted that many community banks, particularly in rural areas, limit costs to consumers by not requiring appraisals on mortgages held in portfolio of $250,000 or less as permitted under FIRREA title XI or by performing cheaper, in-house evaluations of property.
On whether the final rule should identify specific FIRREA regulations that relate to the development and reporting of the appraisal, the Agencies received one comment letter from appraiser trade associations. These commenters requested that the Agencies specify that creditors must use certified rather than licensed appraisers. The comment is discussed in more detail in the discussion of the use of “certified” versus “licensed” appraisers, below.
Discussion
As discussed in the proposal, the Agencies believe that, by referencing FIRREA requirements in the context of defining “certified or licensed appraiser,” the statute intended to limit FIRREA’s requirements to those that apply to the appraiser’s development and reporting of performance of the appraisal, rather than the FIRREA requirements that apply to a creditor’s ordering and review of the appraisal. TILA section 129H(b)(3), 15 U.S.C. 1639h(b)(3). The Agencies also did not propose to interpret ‘‘certified or licensed appraiser’’ to include requirements related to appraisal review under FIRREA section 1110(3) because these requirements relate to an
35
or licensed appraiser performs the appraisal. Comment 35(c)(1)(i)-3 is consistent with the proposal in this regard. Accordingly, as proposed, the final rule includes a comment clarifying that the requirements of FIRREA section 1110(3) that relate to the
‘‘appropriate review’’ of appraisals are not relevant for purposes of whether an appraiser is a certified or licensed appraiser under the proposal. See comment 35(c)(1)(i)-3.
At the same time and in light of public comments, the Agencies reviewed the relevant statutory provisions and confirmed their conclusion that applying the FIRREA requirements related to an appraiser’s performance of an appraisal broadly – to
transactions originated by creditors and transaction types not necessarily subject to FIRREA (such as loans of $250,000 or less) – is wholly consistent with the consumer protection purpose of title XIV of the Dodd-Frank Act, as well as specific language of the appraisal provisions. For example, the Agencies believe that if Congress intended to limit application of the FIRREA requirements to mortgage loans covered by FIRREA, such as loans of over $250,000 made by Federally-regulated depositories, Congress would have expressly done so. Instead, Congress placed the appraisal requirements, including the definition of “certified and licensed appraiser” referencing FIRREA, in TILA, which applies to loans made by all types of creditors. Moreover, limiting coverage of the Dodd-Frank Act higher-risk mortgage appraisal rules to loans of over $250,000 would eliminate protections for most higher-risk mortgage consumers.29 From a practical standpoint, the Agencies believe that the most reasonable interpretation of the
29
According to HMDA data, mean loan size for purchase-money HPMLs in 2011 was $141,600 (median $109,000) and for refinance HPMLs in 2011, mean loans size was $141,600 (median $104,000). In 2010, mean loan size for purchase-money HPMLs was $140,400 (median $100,000) and for refinance HPMLs, mean loan size was $138,600 (median $95,000). See Robert B. Avery, Neil Bhutta, Kenneth B. Brevoort, and Glenn Canner, “The Mortgage Market in 2011: Highlights from the Data Reported under the Home Mortgage Disclosure Act,” FR Bulletin, Vol. 98, no. 6 (Dec. 2012)
36
statute is that all mortgage loans meeting the definition of “higher-risk mortgage” are subject to a uniform set of rules, regardless of the type of creditor. This creates a level playing field and ensures the same protections for all consumers of “higher-risk mortgages.” For these reasons, consistent with the proposal, the final rule applies the FIRREA requirements to appraisals for all HPMLs that are not exempt from the regulation. See § 1026.35(c)(2).
“Certified” versus “licensed” appraiser. Neither TILA section 129H nor the proposed rule defined the individual terms ‘‘certified appraiser’’ and ‘‘licensed
appraiser,’’ or specified when a certified appraiser or a licensed appraiser must be used. Instead, the proposed rule required that creditors obtain an appraisal performed by ‘‘a certified or licensed appraiser.’’ 15 U.S.C. 1639h(b)(1), (b)(2). The Agencies noted in the proposal that certified appraisers generally differ from licensed appraisers based on the examination, education, and experience requirements necessary to obtain each credential. The proposal also stated that existing State and Federal law and regulations require the use of a certified appraiser rather than a licensed appraiser for certain types of transactions. The Agencies requested comment on whether the final rule should address the issue of when a creditor must use a certified appraiser rather than a licensed appraiser.
Consistent with the proposal, the final rule does not separately define “certified” appraiser or “licensed” appraiser, or specify when a creditor should use a “certified” rather than a “licensed” appraiser.
Public Comments on the Proposal
Several national and State credit union trade associations believed that the Agencies should not specify when a creditor must use a certified appraiser rather than a
37
licensed appraiser and requested that the Agencies provide creditors with flexibility to make that determination. Some of these commenters noted that State requirements for certified or licensed appraisers may vary significantly; some states may not issue licenses for appraisers, and some may issue different certified appraiser credentials based on the type of property. A financial holding company commenter, on the other hand, requested that the Agencies clarify circumstances under which a lender must use a certified or a licensed appraiser to facilitate compliance.
On the other hand, appraiser trade association commenters believed that creditors should be required to use only certified appraisers, because the certification is more rigorous than licensure. These commenters stated that the FHA requires newly-eligible appraisers to be certified, and noted that many states have phased out, or are in the process of phasing out, the licensing of appraisers rather than certification. The
commenters further stated that when collateral property is complex, the Agencies should require a certified appraiser who is also credentialed by a recognized professional appraisal organization. Similarly, a realtor trade association commenter believed that using certified appraisers was preferable. The commenter believed that the rule should define appraisals for higher-risk mortgages as “complex,” thus requiring that only certified appraisers may perform the appraisals.
Discussion
As noted above, several commenters confirmed the Agencies’ concerns that State requirements for certified or licensed appraisers may vary significantly and are evolving. Overall, the Agencies believe that imposing specific requirements in this rule about when a certified or licensed appraiser is required goes beyond the scope of the statutory
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“higher-risk mortgage” appraisal provisions in TILA section 129h. 15 U.S.C. 1639h. The Agencies do not believe that this rule is an appropriate vehicle for guidance on standards for use of a State certified or licensed appraiser that may change over time and vary by jurisdiction. Although the FIRREA appraisal regulations specifically require a “certified” appraiser for certain types of mortgage transactions, the Agencies do not believe that these FIRREA rules are incorporated into the higher-risk mortgage appraisal rules applicable to all creditors. See section-by-section analysis of § 1026.35(c)(1)(i) (defining “certified or licensed appraiser” to incorporate FIRREA requirements related to the development and reporting of the appraisal, not appraiser selection or review). Thus, the final rule need not clarify these rules for entities not subject to the FIRREA appraisal regulations; entities subject to the FIRREA appraisal regulations are familiar with them.
Appraiser competency. In the proposed rule, the Agencies also noted that, in selecting an appraiser for a particular appraisal assignment, creditors typically consider an appraiser’s experience, knowledge, and educational background to determine the individual’s competency to appraise a particular property and in a particular market. The proposed rule did not specify competency standards, but the Agencies requested
comment on whether the rule should address appraiser competency. In keeping with the proposal, the final rule does not specify competency standards for appraisers.
Public Comments on the Proposal
A realtor trade association commenter suggested that the rule incorporate guidance from the Interagency Appraisal and Evaluation Guidelines30 regarding
creditors’ criteria for selecting, evaluating, and monitoring the performance of appraisers.
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However, a banking trade association, a financial holding company, appraiser trade association, and several national and State credit union trade association commenters stated that the Agencies should not require creditors to apply specific competency standards for appraisers. Several commenters asserted that competency standards would result in increased regulatory burden and cost, and a banking trade association expressed concern that requiring creditors to implement subjective competency standards could raise conflict of interest issues with respect to appraiser independence.
Appraiser trade association commenters suggested that instead of setting forth competency standards, the Agencies should require a creditor to ensure that the engagement letter properly lays out the required scope of work, that the appraiser is independent, and that the appraiser possesses the appropriate experience to perform the assignment including, when necessary, geographic competency. The financial holding company commenter suggested that the rule should reference FIRREA and require creditors to ensure that appraisers are in good standing. The banking trade association commenter believed that the Agencies should include a reference to USPAP to create a uniform competency standard. One State credit union association believed that the Agencies should permit creditors to rely on appraisers’ representations regarding licensing and certification.
Discussion
The Agencies believe that the many aspects of appraiser competency are beyond the scope of TILA’s “higher-risk mortgage” provisions defining “certified or licensed appraiser,” which do not mention competency. Appraiser competency is addressed in a number of regulations and guidelines for Federally-regulated depositories, which are
